Virginia Attorney General Ken Cuccinelli has weighed in on the controversy over courthouse displays and his opinion was as many expected: holiday and religious displays are lawful on public land, as long as no group that follows the rules is prohibited from participating. That opinion, however, may have little impact on the vote on rules for displays on the courthouse grounds the Loudoun Board of Supervisors is scheduled to take when it returns from its August recess in two weeks.
In his opinion, dated Friday, Aug. 20, Cuccinelli states “a local governmental entity is never categorically compelled to prohibit holiday displays, including those incorporating recognizably religious symbols, because governments enjoy considerable discretion in accommodating the religious expression of their citizens and employees and in their own recognition of traditional seasonal holidays.”
The Attorney General’s opinion came in response to an inquiry by Del. Robert G. Marshall (R-13) about whether Loudoun, under the U.S. and Virginia constitutions as well as state statutes, could prohibit holiday displays on public property.
Since last year the issue of whether religious and non-religious displays would be permitted in the courthouse square during the December holiday season has dogged supervisors, intermittently erupting into loud public discourse. Last November the Courthouse Ground and Facilities Committee voted to prohibit all displays on the lawn of the courts complex in Leesburg, sparking outrage from a number of residents and community groups, and spurring the Board of Supervisors to quickly reverse that action during a special meeting only weeks before the December holidays.
The board’s compromise policy that has been in place since December allows 10 display areas on the courthouse grounds, with one display per area, and applications are reviewed on a first-come, first-served basis. By changing the committee’s policy, supervisors allowed the annual placement of a Christmas tree and crÂche in the square, as well as a display by Loudoun Interfaith Bridges that included a Menorah, crescent, and Sikh display, a banner from the Freedom From Religion Foundation and a mocking of the “12 Days of Christmas” from Sugarland Run resident Edward R. Myers.
In July, the committee came again before the board and asked supervisors to reinstate its prohibition on displays so that government leaders won’t be in the position of determining which requests are for “appropriate” use of the grounds and which are not. That request released another outcry from dozens of residents, but instead of voting on the proposal that month, supervisors decided to delay their decision until September. The delay was agreed upon to give Judge Thomas D. Horne and the other Circuit Court and District Court judges the opportunity to weigh in on the issue.
Citing case law in his opinion, Cuccinelli said the county “must accommodate religious items within the personal space of employees under certain circumstances” and that once a public forum has been established the county would “usually lack the right to exclude a religious display of reasonable duration based solely upon content.”
“The County is free to create a nondiscriminatory forum for recognition of holidays, including Christmas, if it makes clear that the County itself is not communicating a religious message,” Cuccinelli wrote.
Supervisor Eugene Delgaudio (R-Sterling), who has led the charge against any change to the displays policy, said he believes that Cuccinelli’s opinion “hit the nail on the head” and that his thoughts were what “everyone is smacking their heads and saying. No one is of a compulsion to ban religious expression.”
But from the beginning of the debate a majority of supervisors have said the issue is not about allowing or disallowing the representation of different religions, but instead what the best policy for governing use of the courthouse grounds would be. This week County Chairman Scott K. York (I-At Large) said no one on the board would disagree with Cuccinelli’s opinion and many have in fact publicly stated they hold the same position, but that his opinion does not affect anything the board is looking to do.
“It is not addressing at all the issue that we are discussing,” York said.
What has gotten lost through the heated debates over the past nine months, the chairman said, is that the reason behind the committee’s original decision, and continued request, is concern over unattended displays.
“They’re concerned about what happens overnight, when these things are left unattended,” York said. “The Attorney General’s opinion has no impact on that.”
Supervisor Stevens Miller (D-Dulles), while questioning why Cuccinelli and Marshall saw to involve themselves in a purely county issue, agreed that concerns about vandalism are driving members of the committee, but also noted that the ground is already used for displays: the county’s war memorials. That property should be protected, he said. “I do not want our war memorials with the names of Loudoun’s heroes sharing space with the flying spaghetti monster or God forbid the Ku Klux Klan.”
York said that the board has the option to either continue its policy of last December or to make some amendments, such as the possibility of adding security.
“The issue is how do we protect the courts grounds without them getting damaged,” he said. “As well as provide security for the displays.”
Last year, Myers’ display, which riled many residents, was removed during the overnight hours.
Miller also said he is interested in perhaps taking the Town of Leesburg up on Councilman Tom Dunn’s unofficial offer at July’s public hearing to use the Town Green for the displays. That might be a good solution, Miller said, along with the possibility of using the ground in front of the government center for some displays.
The board is scheduled to discuss the issue at 11 a.m. during its Wednesday, Sept. 8, meeting. The board’s business meeting was pushed back one day because of the Labor Day holiday. The board’s public input session will be held Tuesday, Sept. 7, beginning at 7 p.m. Delgaudio said he expects an even larger turnout of residents at that hearing, estimating there would be 100 speakers, as well as a petition with as many as 1,000 signatures.
“The people are still very much involved in this,” he said. “They’re not giving up.”